Thursday, September 27, 2007

A Constitutional Afterthought

Edward Larson asks "Was Dick Cheney's Self-Serving Claim to be Part of Congress Really Laughable?" in an article for HNN.

Larson starts with the recent actions of the Vice President:
Commentators and comedians have ridiculed Vice President Dick Cheney for invoking executive privilege to deny one set of documents to the Senate Judiciary Committee while, at the same time, asserting that his office is not part of the executive branch so as to deny another set to the Information Security Oversight Office of the National Archives. As a historian, though, I admire the Vice President’s chutzpah.

But he goes on to say that:
Rather than being laughably ridiculous, his seemingly conflicting and transparently self-serving claims on these matters have at least enough historical support to qualify as artful dodges rather than baseless evasions.

Laron explains the Vice Presidency was an effort by the founding fathers to create a national candidate rather than having electors just vote for the person from that state. To give the Vice President something to do, they stuck him in Senate. So originally the Vice Presidency was a legistlative post and not much else - backing up Cheney's claim:
As the first Vice President, John Adams tried to make the most of the job but was thwarted at every turn. Despite Adams’s overtures, President George Washington never included the Vice President in his administration and viewed him as an officer of the Senate. Senators, however, quickly tired of hearing the Vice President speak on legislation that he could not vote on, and soon passed a rule prohibiting him from participating in floor debate. Venting his frustrations, the able and opinionated Adams denounced the Vice Presidency as “the most insignificant office that ever the invention of man contrived” – but he stayed on for a second term in hopes of succeeding Washington.

By 1796, when Washington announced his decision to not seek a third term, two national partisan factions had formed in response to bitter divisions over domestic and foreign policy. Adams received the support of one; Thomas Jefferson of the other. When Adams narrowly won, he sought to bridge the growing partisan divide by offering Jefferson, as Vice President, a cabinet-level role in the new administration. Fearing his views could never prevail, Jefferson declined. Instead, he used his position as Vice President to lead the opposition. “The Constitution will know me only as a member of a legislative body,” Jefferson wrote to his closest partisan confidant, James Madison, shortly after the 1796 election. Up to this point, history supports Cheney’s claim that the Vice Presidency is a legislative post, albeit largely a make-work one, but stands against his claim of executive privilege.

But the election of 1800 changed this to the concept we know today - electing "teams" because of the emergence of political parties and the Vice President a de facto member of the exeutive branch - also backing Cheney's claim.

Now the Vice President still has an independent position, but it is difficult for them to use:
Of course, Vice Presidents still held an independent Constitutional position and could assert their independence at their own peril. Vice President John Calhoun famously did so in 1832 over the issue of states nullifying national laws, and faced the wrath of President Andrew Jackson, who privately threatened to hang him for treason. Over a century later, Vice President John Nance Garner ran against his “boss,” President Franklin Delano Roosevelt, for their party’s 1940 presidential nomination. In acting as they did, clearly neither Calhoun nor Garner represented the administration. In contrast, other Vice Presidents have served as a part of the Executive Branch in virtually everything they did – think of Walter Mondale’s role in the Carter Administration, for example.

Larson's conclusion?
In short, the Vice Presidency is a curious post. History and the Constitution suggest that it is both a legislative office and, at least after the 12th Amendment, part of the executive branch. It all depends what the Vice President is doing. In his Constitutional role of presiding over the Senate – which today may involve little more than voting in the case of a tie and sitting beside the Speaker of the House during joint sessions of Congress – Cheney serves in the legislative branch. When functioning as a member of the cabinet and a presidential advisor, Cheney is not fulfilling any legislative duties envisioned under the Constitution. Executive privilege may apply, but with it should come the responsibilities of an executive branch official.

For more information on the Vice Presidents check out my earlier post.

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